Why Karnataka High Court struck down law providing 100% reservation for women in military nursing jobs? [Read Order]

Karnataka: The Karnataka High Court recently struck down a provision of the Indian Military Nursing Services Ordinance, 1943 that provided for 100 percent reservation for women in Military Nursing Services.

For the reasons already recorded, this Court is of the view that exclusive reservation conferred on women while recruiting "nursing officers" under Ordinance, 1943 does violate the rights guaranteed under Articles 14, 16(2), and 21 of the Constitution of India as the classification does not qualify the twin test referred to above.. The expression "if woman" found in Section 6 of the Indian Military Nursing Services Ordinance, 1943 is struck down as unconstitutional", Justice Anant Ramanath Hehge said.

But what prompted the Court to invalidate the law? What were arguments before the Court? LawStreet Journal aims to provide our readers a comprehensive understanding of these aspects.

State cant provide 100% reservation for women: Petitioners argue

Petitioners argued before the court that assuming that Article 15(3) controls Article 16(2), the State cannot provide a hundred percent reservation for women in  employment under the State.   Further, in a matter of public employment, Article 15(3) has no role to play and employment under the State is entirely governed by Article 16 read with Article 14 of the Constitution of India.

Thirdly, the classification based on gender in Section 6 of the Ordinance, 1943 does not pass the twin test of reasonable classification and the rational nexus between the differentia and the object sought to be achieved.

Can make special provision for women: State counters

Supporting the law, the Respondents contended that exclusive reservation for women is provided to fill up the contingent temporary vacancy that may arise when the male nursing officers working in hospitals (who are recruited under a separate recruitment process), will be deployed to attend the soldiers during the war.

Also, exclusive reservation is also provided for men for being employed as nursing officers under a separate recruitment process. The court was told that in practice there is no discrimination based on gender, and equality is ensured. 

Next, Article 15 (3) enables the State to make a special provision for women and the Ordinance, 1943 is protected under the Article, and said Article controls Article 16(2) of the Constitution of India.

Questions before the court

There were two important questions for consideration before the Court:

1. Whether Section 6 of the Ordinance reserving the post of nursing officers en bloc for women, violates the rights guaranteed under Articles 14,16,19 and 21?  

2.  Whether the impugned provision is protected under Articles 15(3) and 33?

Reservation is to include not exclude; no grounds to justify 100% reservation: Supreme Court

After going through the factual matrix and the arguments of parties, the court referred to several Supreme Court judgements on reservation.
Referring to the Indira Sawhney case, the Court said reiterated that in a matter relating to public employment, Article 16(2) governs the field, and Article 15(3) cannot override Article 16(2).

In addition, the Apex Court had held that reservation in public employment cannot exceed more than 50%. And, the principle emanating from this judgment for percentage of reservation has to be applied in the matters relating to employment under the State, the Court added.

In the present case, no such justification is claimed, the court noted.

"It is not the defence that the nursing officers appointed under Ordinance 1943, are required to discharge the duty in a hospital exclusively meant for 21 women or that the nature of work is such that it can be done by only women and not by men".

Also, the contention that the petitioners have not questioned the provision which provides exclusive reservation for men is not a ground to dismiss the petition, the court added.

"The constitutional validity of a provision of law or an Act for that matter cannot be upheld because the petitioners have not questioned an Act or a provision which discriminated in their favour. Each law or provision of a law or anything which has a force of law within the meaning of Article 13, must stand on its own strength when vires is questioned"

The court then looked at the history of the Ordinance. Enacted in 1943, this was a colonial law till it was adapted post-independence through the mechanism provided under the Constitution. The preamble of the Ordinance revealed that it was promulgated to tide over the emergency. However, the preamble doesn't indicate what was the emergency prevailing in 1943, the court expressed.

Also, the Act, adapting the Ordinance does not spell out the objects and reasons for providing the 100% reservation for women, the judgement pointed out.

"Nevertheless, assuming that the Ordinance was adapted to encourage women from joining the Armed Forces, no grounds are made out to justify 100% reservation for women".

The underlying philosophy of reservation is to accommodate and include, but not to exclude, the court categorically stated while adding that exclusive and hundred percent, without justifiable grounds ceases to be a reservation and is exclusion which is not envisaged under the Constitution at all.

Women are justifiably considered to be a separate class under the Constitution. However, it does not mean that there can be hundred percent reservations in employment for women to the exclusion of others - when the classification is solely based on the sex without having any rational nexus to the object sought to be achieved, the Court held.

With regard to whether the Ordinance was promulgated by the Parliament, the Court answered in the negative.

The Respondents had also argued that the Ordinance has been in force for over eight decades and several recruitments have taken place. So, holding the said Ordinance as unconstitutional at this point in time will lead to several complications in the matters concerning cadre, promotion, and hierarchy of officers. But the court didn't reasonate with this logic.

Such a contention cannot have any place when the vires of a provision is questioned, the court said.

"The length of time for which the provision remained unchallenged and the rights and liabilities created under such provision is no defence to uphold the validity of a provision if it is otherwise ultra vires. Hence, the petition succeeds".

[Read Order]